In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3825

FAISAL KHAN,

Petitioner, v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition To Review an Order of the

 Department of Homeland Security.

No. A089 280 927

No. 09-3882

MONA KHAN,

Petitioner, v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition To Review an Order of the

 Department of Homeland Security.

No. A089 280 928

SUBMITTED JANUARY 6, 2010—DECIDED JUNE 11, 2010
2 Nos. 09-3825 & 09-3882

Before EASTERBROOK, Chief Judge, and WOOD and

EVANS, Circuit Judges.

WOOD, Circuit Judge. Petitioner Faisal Khan and his

sister Mona Khan, citizens of Pakistan, obtained B1/B2 nonimmigrant visitor’s visas to travel to the United States,

purportedly for a two-month visit with their brother

and his wife, whom they had not yet met. Immediately

upon the arrival of the Khans and their parents at Chicago’s O’Hare Airport, Faisal and Mona were detained

by the Department of Homeland Security. (The status

of the parents is not before us.) Faisal and Mona were

placed in expedited removal proceedings and ordered

to return immediately to Pakistan. Each filed a petition

for review from the removal order and a motion to

stay removal pending resolution of the petition. We

conclude that the government’s motions to dismiss the

petitions for review for lack of jurisdiction must be

granted.

At the time counsel for the petitioners filed the petition

for review from Faisal’s removal order and the motion

to stay his removal, counsel had almost no information

regarding the removal proceedings, because neither

counsel nor Faisal’s family members had been permitted

to speak to him. Counsel had been unable to obtain even

a copy of the removal order. According to the information counsel had received, Faisal was scheduled to be

removed on a flight that evening. With little information

about why Faisal, who had a valid passport and a

valid visitor’s visa, was being removed, we ordered a

temporary stay of his removal and ordered the govern-
Nos. 09-3825 & 09-3882 3

ment to respond. One week later, Mona, who had been

paroled into the United States for a total of seven days

to obtain medical care, was ordered removed, and she

filed a petition for review and motion to stay her imminent removal. We again temporarily stayed her

removal in order to obtain a response and additional

information.

The government has responded to the motions to stay

removal and has furnished the expedited removal orders

and related documents. These materials explain why the

Khans were not admitted at O’Hare, even though the

government concedes that they had valid, unexpired

passports and valid, unexpired B1/B2 non-immigrant

visitor’s visas. At O’Hare, a United States Customs and

Border Protection (“CBP”) investigating officer determined

that the Khans actually intended to immigrate to the

United States from Pakistan rather than temporarily

visit, and they lacked the necessary documentation

to immigrate. A different visa is needed for an alien

who intends to immigrate than for an alien who has a

residence in a foreign country that he has no intention

of abandoning and who is visiting the United

States temporarily for business or pleasure. 8 U.S.C.

§ 1101(a)(15)(B). Based on the examination at the

border, CBP charged the Khans as inadmissible because

they were attempting to immigrate without immigrant

visas, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I), and

it processed them for expedited removal under

8 U.S.C. § 1225(b)(1)(A)(i). In short order, they were

served with a Notice and Order of Expedited Removal

and found removable as charged; the order was then

approved by a CBP Chief. See 8 C.F.R. § 1235.3(b)(2), (7).
4 Nos. 09-3825 & 09-3882

The government has called our attention to a number

of factors that support its determination that Faisal intended to immigrate. Although we lack jurisdiction to

review the merits of the question whether the CBP

officer correctly initiated expedited removal proceedings,

we note some of the contested factors only to highlight

a few of the concerns with the expedited removal procedure that the petitioners are attempting to raise. Perhaps

what initially aroused the CBP officer’s suspicions was

Faisal’s return airline ticket for August 2010, seven

months later than it should have been under his

stated travel plans for a two-month visit. Faisal also

had $7,800 in cash, his resume translated into

English, and blank letterhead from his current employer

in Pakistan. The government has also given us a 5-page

transcript from Faisal’s interview with the CBP officer.

It believes that the transcript supports the conclusion

that Faisal intended to immigrate to the United States.

We are not so sure. Some of the answers are inconsistent and could support Faisal’s argument that he was

confused and needed a translator. Faisal also protests that

the interview lasted for hours and the 5-page document

could not possibly be a full transcript. He maintains that

the questions and answers the government has selected

were taken out of context. He answered “yes” to the

question whether he “planned on seeking employment

during this entry” but only one page earlier he explained

that he brought his documents because “I thought that

it would prove I am going back to my job in Pakistan.”

Faisal also said, “We are coming just to visit, but if the

opportunity came for me to get a job then we would stay.”
Nos. 09-3825 & 09-3882 5

Toward the end of the questioning, Faisal answered “yes”

to the question whether he had been untruthful, and

when asked why he had been untruthful, Faisal

responded “I did a big stupid thing.” The officer then

asked three separate questions whether he, his parents,

and his sister were “immigrating to the United States on

their B1/B2 visas, and he said “yes” to each. But when

the officer repeated, “You, your sister and parents

were attempting to immigrate to the United States

today, is that correct?,” Faisal responded, “What does

that mean?” Faisal refused to sign the record of his statement or any other documents because he did not

believe they were correct. In his petition before this

court, he has tendered an affidavit that he says he

would offer if the case were remanded for further proceedings and he could submit his own evidence. He

says that he repeatedly told the officer that he was employed in Pakistan, that he was not lying, and that he

had come to visit his brother and vacation with his

family. Faisal asserts that the officer said that Pakistanis

and Muslims “always come to the United States to

marry or to get a job. She also said that we always lie

and that this is what I was doing.”

Mona’s removal proceedings were conducted through

an interpreter, but she was not provided an interpreter

during her initial questioning the prior week. Although

the statute does not require it, regulations issued by the

Department of Homeland Security provide that during

the interview process, “[i]nterpretive assistance shall be

used if necessary to communicate with the alien.” 8 C.F.R.

§ 235.3(b)(2)(i). The officer in the removal proceedings
6 Nos. 09-3825 & 09-3882

referred back to Mona’s answers during the earlier questioning and refused to re-interview her on matters

related to the initial interview. When asked what the

purpose of her visit was, she responded, “I am here to

visit my brother and my new sister-in-law and vacation.”

She agreed that she had told an officer during the

initial interview that she would attend school or marry

someone in the United States if that is what her family

told her to do because she willingly allows her family to

make her life decisions. Mona admitted that she brought

her school transcripts and diplomas with her.

The government moves to dismiss the petitions under

8 U.S.C. § 1252(a)(2)(A), which provides that “no court

shall have jurisdiction to review” an order of expedited

removal under § 1225(b)(1). Although § 1252(e)(2) contains a limited exception permitting review of specific

determinations by habeas corpus petitions, the Khans

do not argue that subsection (e) applies here. Instead, they

assert only that this court may have jurisdiction under

a “safety valve” established for substantial constitutional questions, when review would otherwise be

barred by § 1252, “to enable judicial correction of bizarre

miscarriages of justice.” LaGuerre v. Reno, 164 F.3d 1035,

1040 (7th Cir. 1998). See also Singh v. Reno, 182 F.3d 504,

510 (7th Cir. 1999). This is such a case, they say, in light

of the government’s position, which Faisal characterizes

as: “even if no power has been conveyed by the legislative to the executive branch to enter the removal order

at issue herein, even if the order is legally flawed, notwithstanding that the Petitioner was questioned for

seven hours in the dead of night without any interpreter
Nos. 09-3825 & 09-3882 7

despite the agency’s own regulations calling for one,

no court has the power to consider the legality of the

agency’s actions.” They opine that this is a proposition

of frightening breadth.

The government responds that this court’s cases establishing a safety valve are distinguishable because they

did not involve the same jurisdictional bar that governs

this case. The review-limiting provisions in those cases,

which involved § 1252(a)(2)(C) and § 1252(g), left open

the opportunity for aliens (who could have filed habeas

corpus petitions in the district courts prior to the 1996

Amendments to the Immigration and Naturalization

Act) to bring constitutional issues directly before the

courts of appeals. See Morales-Ramirez v. Reno, 209 F.3d

977 (7th Cir. 2000); Singh, 182 F.3d 504; LaGuerre, 164

F.3d 1035. Moreover, section 1252(a)(2)(D) specifically

provides that “Nothing in subparagraph (B) or (C), or

in any other provision of this chapter (other than this

section) which limits or eliminates judicial review, shall

be construed as precluding review of constitutional

claims or questions of law.” Section 1252(a)(2)(A), however, is not mentioned in § 1252(a)(2)(D) as leaving

open such an opportunity; to the contrary, it expressly

prohibits aliens from raising such claims before the

court of appeals. See Hussain v. Keisler, 505 F.3d 779, 784

(7th Cir. 2007) (“Section 1252(a)(2)(D) plainly states

that other limitations on judicial review in ‘this section’—

that is, section 1252—still apply.”). Other circuits have

held that constitutional and statutory claims arising in

expedited removal proceedings are not reviewable. Garcia

de Rincon v. DHS, 539 F.3d 1133, 1138-39 (9th Cir. 2008)
8 Nos. 09-3825 & 09-3882

(Section 1252(a)(2)(D) does not apply to the jurisdictional limitations in § 1252(a)(2)(A)); Turgerael v.

Mukasey, 513 F.3d 1202, 1205-06 (10th Cir. 2008) (Section 1252(a)(2)(D) preserves the jurisdictional bar of

§ 1252(a)(2)(A)). While the Khans attempt to distinguish these cases because they involved collateral attacks

to expedited removal in the context of reinstatement of

removal, the language of the cases is not so limited,

and nearly all of the cases addressing the expedited

removal statute arise in the reinstatement context.

The Khans acknowledge that this court’s cases recognizing a safety valve involved § 1252(a)(2)(C), whereas

they were at the point of initial entry where their constitutional rights were at their lowest ebb. They protest,

nevertheless, that the purpose of the “safety valve” theory

is that some limited jurisdictional review must be

available despite congressional attempts to bar review.

Cf. INS v. St. Cyr, 533 U.S. 289, 304-05 (2001) (determining

that some jurisdiction must continue to exist over

pure questions of law and constitutional questions

but noting the absence of any express repeal of § 2241

habeas corpus jurisdiction). Here, the Khans acknowledge that there has been an express repeal of jurisdiction.

They nonetheless assume that the court may somehow

disregard the jurisdiction-stripping statute and reach

their constitutional issues under the safety valve. Indeed,

they go on to suggest that it would be anomalous for

the court to refuse to consider statutory arguments

since courts prefer to decide a case on legal grounds

rather than constitutional grounds. They make the

specific argument that the applicable regulation, 8 C.F.R.
Nos. 09-3825 & 09-3882 9

§ 235.3, is invalid because it grants the government

agents the power to order removal without basing any

factual findings on clear, convincing, and unequivocal

evidence. They argue that there is nothing in § 1225(b)(1)

to indicate that Congress intended to modify the rule

from Woodby v. INS, 385 U.S. 276, 286 (1966), that no

deportation order may be entered unless it is found by

clear, unequivocal, and convincing evidence that the

facts alleged as grounds for deportation are true. They

believe that doubtful cases should be referred to

an immigration judge, giving effect to the statutory provisions whereby applicants for admission who are not

“clearly and beyond a doubt entitled to be admitted” be

referred to an immigration judge for a hearing. 8 U.S.C.

§ 1225(b)(2)(A). Finally, they point out that the removal

orders do not charge that they engaged in fraud in violation of 8 U.S.C. § 1182(a)(6)(C), and without fraud, there

is no support that they lacked valid visas.

The troubling reality of the expedited removal procedure is that a CBP officer can create the § 1182(a)(7)

charge by deciding to convert the person’s status from

a non-immigrant with valid papers to an intending immigrant without the proper papers, and then that same

officer, free from the risk of judicial oversight, can

confirm his or her suspicions of the person’s intentions

and find the person guilty of that charge. The entire

process—from the initial decision to convert the person’s

status to removal—can happen without any check on

whether the person understood the proceedings, had an

interpreter, or enjoyed any other safeguards. To say that

this procedure is fraught with risk of arbitrary, mistaken,
10 Nos. 09-3825 & 09-3882

or discriminatory behavior (suppose a particular CBP

officer decides that enough visitors from Africa have

already entered the United States) is not, however,

to say that courts are free to disregard jurisdictional

limitations. They are not, and we thus must align ourselves with the courts that have considered the issue

and hold that we lack jurisdiction to inquire whether

the expedited removal procedure to which the Khans

were subjected was properly invoked. Brumme v. INS,

275 F.3d 443 (5th Cir. 2001); Li v. Eddy, 259 F.3d 1132,

1134 (9th Cir. 2001), opinion vacated as moot, 324 F.3d 1109

(9th Cir. 2003) (“On its face, subsection (e)(2) does not

appear to permit the court to inquire into whether

section 1225(b)(1) was properly invoked, but only

whether it was invoked at all.”). Under § 1252(e), which

sets forth the limited exceptions to the jurisdictional bar,

a court has jurisdiction to inquire only “whether such

an order in fact was issued and whether it relates to the

petitioner. There shall be no review of whether the alien

is actually inadmissible or entitled to any relief from

removal.” 8 U.S.C. § 1252(e)(5).

In a similar situation, the Fifth Circuit affirmed a

district court’s dismissal for lack of jurisdiction of a

habeas corpus petition challenging an expedited removal

order. Brumme v. INS, 275 F.3d 443 (5th Cir. 2001). The

petitioner was a native and citizen of Germany, but

she made frequent trips to the United States, owned

a home in Tucson, and had a visitor’s visa valid

through 2005. In March 2000, she and her husband returned to the United States and received entry permits

valid through August 2000. In July 2000, the petitioner
Nos. 09-3825 & 09-3882 11

went to Germany for 10 days to visit her mother and

attempted to re-enter the United States to return to her

husband, who was being treated here for cancer. The

INS inspector determined that she intended to become

an immigrant and did not possess a valid immigrant

visa, and she was ordered removed under § 1182(a)(7).

The district court concluded that it lacked jurisdiction

under § 1252(e)(5) to decide the real issues the petitioner

was trying to raise—whether she was admissible or

entitled to relief from removal—and the Fifth Circuit

affirmed the dismissal. Id. at 446.

Finally, the Khans have attempted to challenge the

regulations under which their case has been processed.

But that is nothing but a thinly disguised challenge to

the validity of the expedited removal system and is

untimely under § 1252(e)(3), which permitted a judicial

review in an action instituted in the United States

District Court for the District of Columbia no later than

60 days after it was first implemented. In fact, such a

challenge was brought, and the District Court for the

District of Columbia upheld the regulations as written

against challenges to: (1) the ban on aliens’ communicating

with family, friends and counsel during secondary inspection; (2) the failure to provide adequate language interpretation at secondary inspection; (3) the failure to

provide adequate access to and participation of counsel

prior to and during the secondary inspection; (4) the failure

to provide adequate information on charges and procedures, the opportunity to contest those charges, and

the failure to provide for review of removal orders; and

(5) the application of these procedures to individuals with
12 Nos. 09-3825 & 09-3882

facially valid documents. American Immigration Lawyers

Ass’n v. Reno, 18 F. Supp. 2d 38, 53-57 (D.D.C. 1998),

aff’d, 199 F.3d 1352 (D.C. Cir. 2000).

As relevant here, the district court rejected the plaintiffs’ argument that expedited removal procedures

should apply only to aliens whose travel documents are

facially invalid and that aliens found inadmissible under

§ 1182(a)(6)(C) or (a)(7) based on other factors should

be referred to an immigration judge. 18 F. Supp. 2d at 56.

The court held that the plain language of the statute

provides that inadmissibility under these provisions can

arise for reasons other than facially invalid or absent

papers. Id. “Thus, an inspecting officer can and must

refuse admission if a visa holder fails to establish to

the inspector’s own satisfaction that the visa holder

fulfills the requirements for the classification which his

visa bears. Contrary to plaintiffs’ apparent belief, the

inspector is not statutorily limited to ascertaining that

the ‘face’ of the visa indicates that a consular officer

has found the alien admissible; rather, the inspector

undertakes an independent admissibility determination

himself.” Id. at 57. Finally, the district court ruled that

§ 1252(e)(3)(A)(ii) permitted it to review only the regulations as written, not as applied and not for the agency’s

alleged failure to follow its own regulations. Id. at 58. The

court acknowledged concern, as we do, with the effects

of Congress’s decision to bar the unwritten actions of

the agency from judicial review, particularly where

individual CBP agents are given so much discretion

and are subjected only to a supervisor’s review of their

decisions. Id.
Nos. 09-3825 & 09-3882 13

We nonetheless conclude that we are required by law

to GRANT the government’s motions to dismiss and

DISMISS the petitions for review for lack of jurisdiction.

The motions to stay removal pending resolution of the

petitions for review are DENIED.

6-11-10